WARRANTY BY SERVANT. 555 



the servant of a livery stable-keeper— ;7er Ashurst J. {Feim v. Harrison); 

 but if the owner of a horse tvere to send a stranger to a fair with express 

 directions ?iot to warrant the horse, and the latter acted co7itrary to the orders, 

 the purchaser could only have recourse to the person who actually sold 

 the horse, and the owner would not be liable on the warranty, because 

 the servant was not acting within the scope of his employment {ib). 



It was expressly laid down by Lord Ellenhoroufjh C.J., in Alexander 

 V. Gibson, where the defendant's servant swore that he was expressly for- 

 bidden hj his master to giveaivarranty, and denied that he had given one, 

 while another witness said that he had warranted the horse " sound all 

 over;" that if a servant is authorized to sell a horse and receive the 

 stipulated price, he is impliedly authorized to give a warranty of 

 soundness which will bind his master, and that it is enough to prove 

 that he gave it, without calling him or showing that he had any 

 special authority to do so. His lordship ruled, in Helyear v. Hawhe, 

 that ivhat a servant has said respecting the horse at the time of the actual 

 sale, as part of the transaction of selling, is evidence against the 

 principal, but not what he may have said at another time; and 

 further, that being entrusted to do all that he can to effectuate the 

 sale, he binds his master even if he exceeds his authority. And see 

 Irving v. Motley. Erskine J, also declined to receive evidence in Allen 

 V. Denstone, that defendant's son said on the day of the sale, in answer 

 to a question about the price, that he would warrant the horse all 

 right except being a whistler, as it was a mere conversation with a 

 stranger, and not a statement made in the course of the bargain. His 

 lordship said: " It might have been admissible if it had been shown 

 that, in offering the horse for sale, the defendant's son had offered to 

 give a warranty, as that would have been a statement accompanying 

 an act done in the course of his agency;" and after a verdict for 

 the defendant, the Court of Common Pleas refused a new trial. 



The general rule in selling a horse hy a servcmt or agent is thus stated 

 in Oliphanfs Law of Horses, 2nd ed., page 105 : " The master or owner 

 is bound by a warranty given by his servant or agent at the time of 

 sale, without his consent, and even against his express direction; and 

 the only exception is the case of the agent of a person, who is neither 

 a horse-dealer, or stable-keeper, warranting a horse in spite of the ex- 

 press orders of the owner to the contrary ; and then if the principal is 

 unwilling to stand by it, he should at once offer to rescind the con- 

 tract." 



The case of a warrant g hg a servant ivho was merely entrusted to de- 

 liver a horse was lully considered by the Court of Exchequer in Woodin 

 V. Burford, which decided that a warranty of a person, in this case a 



